Citation Nr: 1303033
Decision Date: 01/30/13 Archive Date: 02/05/13
DOCKET NO. 10-31 650A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss disability.
2. Entitlement to service connection for chest pain.
3. Entitlement to an initial compensable rating for hiatal hernia.
4. Entitlement to an initial compensable rating for chronic sinusitis.
5. Entitlement to an initial compensable rating for patellofemoral syndrome, left knee.
6. Entitlement to an initial compensable rating for patellofemoral syndrome, right knee.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America, Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
E. I. Velez, Counsel
INTRODUCTION
The Veteran had active service from June 1987 to March 2007.
This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction has since been transferred to the RO in Baltimore, MD.
In February 2012, the Veteran provided testimony before the undersigned Veterans Law Judge at a hearing held in Washington, DC. A transcript of the hearing is in the claims folder.
The issues of entitlement to a compensable initial disability rating for chronic sinusitis and patellofemoral syndrome of the right and left knees are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. In February 2012, prior to the promulgation of the Board's decision in the appeal, the Veteran withdrew his appeal with respect to the issues of an initial compensable rating for service-connected hiatal hernia, and entitlement to service connection for bilateral hearing loss disability.
2. In April 2012, prior to the promulgation of the Board's decision in the appeal, the Veteran, through his representative, withdrew his appeal with respect to the issue of entitlement to service connection for chest pain.
CONCLUSION OF LAW
1. The criteria for withdrawal of a Substantive Appeal for the issue of entitlement to an initial compensable rating for service-connected hiatal hernia by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).
2. The criteria for withdrawal of a Substantive Appeal for the issue of entitlement to service connection for bilateral hearing loss disability by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204(2012).
3. The criteria for withdrawal of a Substantive Appeal for the issue of entitlement to service connection for chest pain by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
An appellant or an appellant's accredited representative may withdraw an appeal in writing or on the record at a hearing on appeal at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204. When an appellant does so, the withdrawal effectively creates a situation where there no longer exists any allegation of error of fact or law. Consequently, in such an instance, the Board does not have jurisdiction to review the appeal, and the appropriate action by the Board is dismissal of the appeal. 38 U.S.C.A. §§ 7104, 7105(d).
An initial noncompensable rating for service-connected hiatal hernia disability was assigned in an April 2008 rating decision. In the same decision, entitlement to service connection for bilateral hearing loss disability and chest pain was denied. This appeal ensued.
In testimony received by the Board in February 2012, the appellant indicated that he wished to withdraw his appeal with respect to the certified issues of an initial compensable rating for service-connected hiatal hernia, and entitlement to service connection for bilateral hearing loss disability. In an April 2012 Brief of the Appellant submitted by the Veteran's representative, the appellant's representative indicated that the appellant wished to withdraw his appeal with respect to the certified issue of entitlement to service connection for chest pain.
These withdrawals are permissible under the Board's rules of practice. See 38 C.F.R. § 20.204. Given the appellant's clear intent to withdraw his appeal as to these issues, further action by the Board in these matters would not be appropriate. 38 U.S.C.A. § 7105.
ORDER
The appeal of the denial of an initial compensable rating for service-connected hiatal hernia is dismissed.
The appeal of the denial of service connection bilateral hearing loss disability is dismissed.
The appeal of the denial of service connection chest pain is dismissed.
REMAND
The appellant seeks a compensable initial disability rating for the service connected chronic sinusitis, and patellofemoral syndrome of the right and left knees. After a careful review of the evidence of record, the Board finds that additional development is needed prior to deciding the appellant's claims.
The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012).
In January 2008, the appellant was afforded a VA examination regarding his service connected patellofemoral syndrome of the right and left knees, and chronic sinusitis.
At the February 2012 hearing, the appellant testified that his disabilities had worsened since his January 2008 VA examination. Regarding his bilateral knees, he testified that he now experienced increased pain on a more continuous basis. He testified his pain was now near constant and had been steadily increasing over time. Private treatment records show that the appellant has received Synvisc shots to treat the pain on his knees. Regarding his chronic sinusitis, he testified that he uses continuous medication such as Tylenol Cold to treat his symptoms. He also testified he has lost two weeks of work due to his symptoms. According to the Veteran, while he has not been prescribed bedrest, he has been offered convalescence slips by his treating physician. He also testified he keeps antibiotics in hand to self-treat his symptoms. In essence, the appellant's testimony argues a worsening of symptoms since the 2008 VA examination.
The United States Court of Appeals for Veterans Claims (Court) has held that a veteran is entitled to a new VA examination where there is evidence that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).
In light of the appellant's contentions and the remoteness of the most recent VA examination, the only VA examination of record is over four years old, the claim is remanded in order to afford the appellant a VA examination to determine the current severity of his chronic sinusitis and patellofemoral syndrome of the right and left knees.
Finally, the Board notes that at the hearing the Veteran testified that he had been treated for his knees in 2009 and 2010 at Ft. Detrick, MD. A review of the claim file shows that no VA outpatient treatment records have been associated with the claim file. To ensure the duty to assist has been met, all outstanding VA treatment records must be associated with the claim file.
Accordingly, the case is REMANDED for the following action:
1. Obtain and associate with the claim file all outstanding outpatient treatment records for the treatment of the Veteran's bilateral knees and chronic sinusitis from 2007 to the present. In particular, efforts should be made to associate any outstanding records from Ft. Detrick, MD, dated in 2009 and 2010. All efforts to obtain the records should be clearly documented in the claim file.
2. After the above development has been completed, schedule the appellant for appropriate VA examinations to ascertain the current severity of his chronic sinusitis and patellofemoral syndrome of the right and left knees. The claims file should be provided to the appropriate examiner for review and the examiner should note that it has been reviewed. The examiner should also be provided access to the appellant's Virtual VA file for review of any pertinent records contained therein. The examiner must consider the Veteran's lay reports of increased pain in his knees and continued sinusitis symptoms. The examiner must provide ranges of motion for the bilateral knees including after repetitive use. All findings must be clearly documented in the examination report.
3. After the above is complete, readjudicate the appellant's increased rating claims. If a complete grant of all benefits requested is not afforded, issue a supplemental statement of the case (SSOC) to the appellant and his representative, and they should be given an opportunity to respond, before the case is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs